Partisan Election Officials Are 'Inherently Unfair' But Probably Here To Stay
When Ohio State elections law professor Daniel Tokaji tells colleagues from other parts of the world about how the United States picks election officials, he says they're stunned.
"And not in the good way," says Tokaji.
That's because in a large portion of the U.S., elections are supervised by an official who is openly aligned with a political party. It's a system of election administration that's routinely come under scrutiny over the past two decades, and did again in this year's midterms especially in Georgia, Florida and Kansas.
"Just about everyone recognizes that it's inherently unfair for the umpire in our elections to be also a player on one of the two teams, Democrat or Republican," Tokaji says.
Still, that's how election administration works in much of the country, according to University of North Carolina Charlotte political science professor Martha Kropf, who studies the topic.
At the state level, two-thirds of states elect a chief official, in many cases a secretary of state, who oversees voting. And the vast majority of them are partisans. About half of all local election officials are also aligned with a political party.
"It appears bad, in the same way that gerrymandering appears to be bad on a partisan basis, done by state legislatures," Kropf says. "Having local officials that are elected on a partisan basis running elections seems fishy."
In Florida, Republican Gov. Rick Scott narrowly won his race for the U.S. Senate seat there.
But as votes were still being counted, he called out the election supervisors in Broward County and Palm Beach County — Brenda Snipes and Susan Bucher — both of whom are elected Democrats (Snipes has subsequently resigned).
Scott, who appointed Florida Secretary of State Ken Detzner, claimed without evidence that rampant voter fraud was taking place in both counties, and asked the Florida Department of Law Enforcement to investigate the claims.
"No rag tag group of liberal activist or lawyers from D.C. will be allowed to steal this election from the voters from this great state," Scott said after announcing he had called law enforcement.
Both Detzner's office and the Florida Department of Law Enforcement said they found no evidence of voter fraud and declined to investigate further.
Even though there was no evidence of foul play on the part of Snipes or Bucher, their political affiliation gave Scott, and even President Trump, ammunition to sow doubt even as votes were still being counted.
Brenda Snipes, in charge of voting in Broward County, Florida, was just spotted wearing a beautiful dress with 300 I VOTED signs on it. Just kidding, she is a fine, very honorable and highly respected voting tactician!— Donald J. Trump (@realDonaldTrump) November 28, 2018
In Georgia, Secretary of State Brian Kemp won his race for governor. But many of his office's policies were viewed by Democrats as thinly veiled attempts at voter suppression.
Between long lines at polling places in Democratic districts, to allegations of cyber hacking that never bore fruit, Kemp's dual roles as chief election official and candidate made it easy for critics to question the election's legitimacy.
Kemp himself rejected those allegations, saying at an October debate that "no one has made it easier to vote and harder to cheat in our state... I've actually taken the lead on these issues."
Just this week, his opponent, Democrat Stacey Abrams, filed an ambitious lawsuit against the state of Georgia that will "pursue accountability in Georgia's elections."
And in Kansas, Kris Kobach served as secretary of state as he also ran, unsuccessfully, for the governorship.
Kobach has long alleged that in-person voter fraud is rampant in the state and helped usher in more stringent voter ID requirements in the state. He also helped head the controversial voting commission established by President Trump after the 2016 election that was meant to establish that there was widespread voter fraud. The committee dissolved without producing any findings.
Kobach's role as the chief election officer in Kansas also came under scrutiny in the primary.
With just a few hundred votes separating him from Gov. Jim Colyer, Kobach initially refused to recuse himself from any role in a recount. Under pressure, Kobach eventually did recuse himself and was declared the winner.
During the general election, a local clerks's decision to relocate a polling place in a heavily-immigrant community to a less accessible location was viewed by some voting rights activists as an attempt by Kobach's allies to suppress potentially Democratic votes.
Looking to 2020
In general, partisan election officials can't change the rules of an election when it is under way. But they do interpret those rules, and that interpretation matters when the margins are tight.
Kropf says the partisanship of election officials can affect factors such as how provisional ballots are judged, and even how readily election officials respond to inquiries from voters.
To be clear — in the vast majority of jurisdictions with partisan election officials in Florida and elsewhere — there are no reported concerns that the election is being run unfairly.
In Florida, the allegations about partisanship this year overshadowed what was actually a successful election, said Susan MacManus, a political science professor at the University of South Florida.
"The sad part of this whole election for Florida is there are a lot of terrific supervisors," MacManus said. "But that got kind of left behind. People never saw that picture."
One of the central themes of voting administration is that the appearance of fairness matters as much as anything else. MacManus says she's even spoken to election officials who admit "it's a bit uncomfortable" to run elections while also being affiliated with a party.
"It's a matter of democratic legitimacy," Ohio State professor Tokaji says. "In other words: Do we have a democracy that's really worthy of our confidence when there's the perception and sometimes the reality that election officials are running elections in a way designed to favor themselves and their party?"
Polling shows that when most voters consider the issue, they want election officials to be non-partisan.
But because states administer elections, a fundamental change to the system would require updating individual state laws across the country, a development experts don't see happening anytime soon.
"At least in the near term, in our hyper-decentralized, polarized politics, it's hard to see any move towards some non-partisan administration of elections," said Rick Hasen, an elections expert at UC Irvine.